Law of inheritance: Property of male person dying intestate under personal laws - The Daily Guardian
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Law of inheritance: Property of male person dying intestate under personal laws

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India is known for its archaic and ethnic diversity along with the ingredient of personal laws serving as a cherry on the top. The multi mosaic model of the country continued its peaceful existence until the challenge of succession emerged which owed its origin to religion and the customary practices. Succession laws were guided by the religious scriptures or texts for devolution of proprietary rights of the two major religions namely Hinduism and Islam being practiced and professed by the population in those times. This engendered a major predicament for the other religious clans like Christians, Jews, Parsis, Armenians and Anglo-Indians. English laws were applied to combat the situation but they were applicable in presidency towns only and the laws were quite ambiguous on Moffusil level until the Indian Succession Act, 1865 came into being. It regulated all the testamentary and intestate succession with subject to certain exceptions. These exceptions were so exhaustive in nature that it excluded all the native Indians from its purview.

Inheritance rights play a pivotal role in institutionalizing the very framework of family by controlling the family resources, affecting the futuristic opportunities of the coming generations. Property laws in India reflected a skeptical attitude due to dominance of patriarchy in personal laws. The position of women in India with respect to succession is quite discriminatory in almost every religion practiced and requires immediate divorce from religions and a uniform civil code to ensure that the laws are just in real sense.

SUCCESSION AND WOMEN

Since the inception of human civilization, women were webbed into a division of labor which assigned her domestic chores and their male counterparts were assigned physically demanding work, serving the foundation for patriarchy in the society. This practice continued through generations and as a result women got stuck within the four walls while men continued with their usual chores, eventuating women to a status-quo of vulnerability. Thus, through the development of society, women have reached a position to be under the thumb of patriarchy.

The frame work for property laws had been manipulated in such a way that it created a monopoly for men to twist and turn laws in their favor and lead to a sorry state of affairs for women. This ensured the secondary status of women in the society, making it impossible for them to be self-dependent under any circumstance. All these laid to development to Woman’s right to property issue and cornerstone of social justice. After the adoption of the Constitution, the enactment of Hindu Succession Act, 1956 (Herein after called as HSA) assisted women to through her subversive image by granting them much greater rights in property. The said Act granted women full ownership rights in the property inherited from their husbands and eventuated daughter’s claim to inherit property from their father. In Dharam Singh v. Aso, it was inferred that the daughters after getting married had no right to claim the father’s property. The HSA, though helped women in acknowledging their rights, yet was enshrined with discriminatory principles of the Mitakshara School which excluded women from establishing their claim in the ancestral property. The protraction of preferential laws with respect to devolution of tenures, dwelling house, distinct schemes of intestate succession for Hindu men and Hindu women were some of the dubious characteristics of HAS. In order to end this tyranny, a major amendment was made under the Hindu Succession (Amendment) Act, 2005 (Herein after called as HSAA, 2005), amending section 6 of HAS, 1956 eventuating daughters with sons in the Joint coparcenary property. It was made after an amendment made after 2005 under Article 23 of the Constitution of India initiating the daughters’ equal claim in the partition of dwelling house. Section 6 of HSAA, 2005 ended the restriction against a remarried woman’s property rights and established it legally to claim inheritance property rights which was something curtailed in HSA operating within a Joint Hindu Family governed by Mitakshara Law system.

HSAA, 2005 took a great leap in taking down the patrilineal system of inheritance until the case of Prakash v. Phulavati, came before the S.C. The division bench held that the amendment of 2005 encompassed to existing daughters of existing coparceners as on 09-09-2005, irrespective of when such daughters were born. This decision was overruled by a three-judge bench stating that, the daughter was entitled to be a share-holder after HSAA, 2005, irrespective of her father existing or not at the time of the amendment. The development of the recent decision was stirred by a conflict of opinion observed between Prakash v. Phulvati and Danamma@ Suman Surpur v. Amar in the interpretation of section 6 of HSAA, 2005.

The holy Quran is the source of Islam and a Muslim is a person believing in Islam considering that there is one God and Mohammed is his prophet. Thus, making them obligated under the Muslim Personal law (Muslim Law of Succession) where the parties are Muslims. The Muslim Personal Act (herein after called as MPA) does not apply to Muslims whose marriage is solemnized under the Special Marriage Act, 1954 which is a secular territorial act. Hence, the devolution of property will fall under the ambit of Indian Succession Act, 1925.

Muslims of India are regulated by the uncodified Islamic principles of Inheritance Rights. These laws are rooted to favor the prevalence of patriarchy within the society and an attempt to undermine the property rights of women. Although, the women in Islam are considered equal to men but in contrary to that they receive only half of that as compared to their male counterpart according to the rules of Muslim Intestate Succession. A Muslim widow is deprived of her inheritance rights if the marriage remains unconsummated. This brings us to the sorry state of affairs for women who are treated like second class citizens of India. A Muslim woman enjoys her share of inherited shares only and after meeting with the expenses of the funeral of her husband. Bequests are limited only till 1/3rd of the property. In Islam there is no distinction between movable and immovable property unlike Hindu law and no concept of coparcener is enjoyed. The property devolves on heirs only after the death of the father.

NEED FOR UNIFORM CIVIL CODE

India is a pluralistic country which enjoys the feature of secularism conferred to it by the Constitution framers. Part IV of the Constitution under article 44 talks about a Uniform Civil Code (herein afterwards called as UCC) throughout the territory of India. Unfortunately it is guaranteed to us not as a fundamental right rather than as a Directive Principle of State Policy which cannot be challenged in Court of law to be implemented.

The personal laws in the present era contradict with the development of society and hamper the growth of exploited section of the society, thus, leading to stagnation. Article 44 of the Indian Constitution clearly states that there is no explicit relation between personal laws and religion. There are two different sides of a same coin and this statement can be drawn in relation with Article 25 guaranteeing freedom to practice any religion as opposed to public order, morality and health whereas Article 44 demarcating religion and personal laws. Succession being a secular feature cannot be brought under the ambit of Article 25, 26& 28 as highlighted as religious matter under the Constitution of India.

CONCLUSION

The intestate succession laws for Muslims are still uncodified making it ambiguous whereas for Hindus the laws are codified and governed by Hindu Succession Act. The only exception is for Muslims solemnizing their marriage under Special marriage Act, 1954 are governed under Indian Succession Act, 1925. However, under normal circumstances Muslims are governed by Muslim Personal laws or the Shariat. This invites for immediate attention of UCC to help equality prevail in India.

UCC has to free from the clutches of religious beliefs and thoughts only then equality can be achieved in real sense. The concept of UCC is still a matter of hanging fire as its implementation would lead to loss of the cultural and traditional essence of the community.

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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